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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal.
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Monday, January 07, 2019

Trial to start in California over Census citizenship query

SAN FRANCISCO — A trial will begin Monday in federal court in San Francisco over the Trump administration’s decision to add a citizenship question to the 2020 U.S. Census.

Judge Richard Seeborg is scheduled to hear a week of testimony from experts and other witnesses. The judge will decide whether to allow the question.

Seeborg is presiding over lawsuits by California and numerous cities in the state that argue the citizenship question was politically motivated and would discourage immigrants and Latinos from participating in the Census.

The plaintiffs say that would result in an undercount that would jeopardize their federal funding and the state’s representation in Congress. Data from the Census are used to determine the distribution of Congressional seats to states and billions of dollars in federal funding.

The lawsuits want Seeborg to keep the citizenship question off the Census.

The U.S. Department of Justice argues Census officials take steps to guard against an undercount, including making in-person follow-up visits, so the final numbers will be accurate. Households that skip the citizenship query but otherwise fill out a substantial portion of the questionnaire will still be counted, Justice Department attorneys said in court documents.

Seeborg is the second federal judge to hold a trial on the issue. A ruling in a trial in New York that ended in November is expected soon.

The Commerce Department announced the addition of a citizenship question in March, saying the Justice Department had requested it and it would improve enforcement of a 1965 law meant to protect minority voting rights. The move sparked an outcry from Democrats, who said it would disproportionately impact states that favor their party.

All households were last asked whether individuals were citizens of the U.S. or not in the 1950 census.

Documents unearthed as part of the litigation in New York appear to show that Commerce Secretary Wilbur Ross was pursuing the addition of the question well before the DOJ’s request and spoke about it in spring 2017 with former senior White House adviser Steve Bannon and then-Attorney General Jeff Sessions.

There was enough evidence “to infer that Secretary Ross was motivated to add the citizenship question for the partisan purpose of facilitating the exclusion of non-citizens from the population count for congressional apportionment,” California and other plaintiffs told Seeborg in court documents.

They plan to use testimony from academics to support their claim that the citizenship question would result in a costly undercount. That would violate the Constitutional requirement that the Census include everyone in the U.S., even non-citizens, they argue.

“This week we’ll bring in witnesses who will demonstrate just how critical an accurate 2020 Census count is for our state and people,” California Attorney General Xavier Becerra said in a statement.

The DOJ plans to rely on its expert, Stuart Gurrea, to argue the citizenship question would cause no change in congressional apportionment in any state and only a negligible dip in the distribution of federal funds to California.

In a court filing, they said the plaintiffs had failed to show ulterior motives for the question. Ross’s request that his staff look into adding it to the Census does not show he acted improperly nor does the fact that other officials might have supported it for different reasons, DOJ attorneys said.

“It is unremarkable for an agency head to enter office with predispositions toward certain policy choices,” they said.